Mr Mason Sutcliffe-Hall v The Trustee for the Coyle Family Trading Trust T/A Pneuvibe Pty Ltd

[2025] FWC 175

[2025] FWC 175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Mason Sutcliffe-Hall
v

The Trustee for the Coyle Family Trading Trust T/A Pneuvibe Pty Ltd

(U2024/14034)

COMMISSIONER TRAN MELBOURNE, 20 JANUARY 2025

Application for an unfair dismissal remedy - Application dismissed - Objection upheld - Minimum Employment Period

1. On 25 November 2024, Mr Mason Sutcliffe-Hall (the applicant) made an application under s 394 of the Fair Work Act 2009 alleging that he was unfairly dismissed by The Trustee for the Coyle Family Trading Trust trading as Pneuvibe Pty Ltd (the employer/respondent).

1. Section 396 requires that the Commission must first decide whether a person is protected from unfair dismissal before considering the merits of an application for an unfair dismissal remedy. Section 382(a) of the Act requires that a person has completed a minimum employment period. The relevant minimum employment period is defined in s 383 of the Act (6 months or one year if the employer is a small business employer.)

1. In this matter, Mr Sutcliffe-Hall says that his employment started on 20 November 2023. Pneuvibe says that Mr Sutcliffe-Hall’s employment started on 29 November 2023.

1. There is no factual dispute about the date that Mr Sutcliffe-Hall’s employment ended, which was 22 November 2024.

1. Pneuvibe also says that they are a small business, employing a total of 10 employees at the time that Mr Sutcliffe-Hall’s employment ended. This total includes the 2 owners and Mr Suttcliffe-Hall.

1. I find that the employer is a small business employer within the meaning of s 23 of the Act as they employed fewer than 15 employees at the time that MSH’s employment ended.

1. In accordance with s 383(b), the minimum employment period that Mr Sutcliffe-Hall must have completed is therefore one year as at Friday 22 November 2024, which was the date of dismissal.

1. The issues to be determined in this matter are therefore:

   ·   Mr Sutcliffe-Hall’s employment start date; and

   ·   The impact of a period of unpaid leave that the employer says Mr Sutcliffe-Hall took from around 15 May 2024 until 18 July 2024 on Mr Sutcliffe-Hall’s period of service.

Directions and Determinative Conference

1. I issued directions in this matter on 17 December 2024. Pneuvibe complied with those directions; Mr Sutcliffe-Hall did not. Mr Sutcliffe-Hall had filed materials with his application form, which included his contract of employment, training contract, emails between him and the employer and his termination letter. Pneuvibe’s materials included pay records and records relating to a period of unpaid leave that they say Mr Sutcliffe-Hall took.

1. I conducted a determinative conference in relation to this matter via Teams on 20 January 2025. Pneuvibe was represented by Mr Jeff Coyle and Ms Hannah Coyle. MSH did not attend the determinative conference.

Start Date

1. I find that Mr Sutcliffe-Hall’s employment started on 29 November 2023 based on emails provided by him and the employer’s pay records.

1. Both parties filed the employment contract. This was dated 20 November 2023. The contract was signed by the employer on 20 November 2023 but not signed by Mr Sutcliffe-Hall until 29 November 2023. It is possible for an employment contract to be dated before (or indeed after) employment starts or to be signed after employment starts. I do not consider the contract helpful in determining the start date.

1. Mr Sutcliffe-Hall filed emails that show Pneuvibe suggesting that he start work on 27 November 2023. This indicated that his employment did not start on 20 November 2023.

1. Pay records provided by Pneuvibe show that the first pay made to Mr Sutcliffe-Hall was on 6 December 2023. Pneuvibe says, and the pay records confirm, that pay was weekly. Pneuvibe says that Mr Sutcliffe-Hall would not have started any earlier than 29 November 2023 as he was not paid earlier than this date. I do not have any information or evidence from Mr Sutcliffe-Hall to contradict this, and it is consistent with the email filed by him.

Period of Unpaid Leave

1. Pneuvibe provided the following documentary material about the period of unpaid leave that it says MSH took due to a motorcycle accident.

   ·   Pay records;

   ·   Medical certificate dated 11 May 2024;

   ·   WorkCover Certificate of capacity dated 10 July 2024; and

   ·   Emails between Mr Sutcliffe-Hall and Pneuvibe from 20 June 2024 until 10 July 2024.

1. Together, the information appears to confirm that Mr Sutcliffe-Hall did not attend for work from 10 May 2024 until Thursday 18 July 2024, a period of 2 months and 9 days. I do not have any information or evidence from Mr Sutcliffe-Hall to contradict this

1. Under s 22(2)(b) of the Act, periods of unpaid leave or unpaid authorised absence do not count towards service, except for those situations listed in s 22(b)(i), (ii), and (iii), respectively being (i) community service leave, (ii) a period of stand down or (iii) other leave prescribed in the regulations. The period of unpaid leave that Mr Sutcliffe-Hall took does not come within any of the listed situations.

1. Based on correspondence with the Commission, Mr Sutcliffe-Hall appears to accept that he was on a period of unpaid leave. Also, I am otherwise persuaded by the documentary material that he was on a period of unpaid leave of 2 months and 9 days.

Conclusion

1. Based on the above, I conclude that Mr Sutcliffe-Hall is not a person who is protected from unfair dismissal as he did not complete the minimum period of employment of one year with Pneuvibe. This is because his employment did not start until 29 November 2023 and his employment ended on 22 November 2024. This is a 7 days fewer than the one year required by s 383(b) for a small business employer. Furthermore, Mr Sutcliffe-Hall’s period of service is reduced by 2 months and 9 days due to the period of unpaid leave from May until July 2024.

Order

1. I order that the application for an unfair dismissal remedy under matter number U2024/14034 filed by Mr Sutcliff-Hall on 25 November 2024 be dismissed.

COMMISSIONER

Appearances:

No appearance for Applicant

Mr Jeff Coyle & Mrs Hannah Coyle for Respondent

Hearing details:

Monday

20 January 2025
Via Microsoft Teams

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